This is simply bizarre

Karan Thapar

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Updated: Nov 24, 2012 09:36 IST

The arrest of two 21-year-old Mumbai girls under Section 66A of the Information Technology Act for questioning on their Facebook page the shutting down of their city for Bal Thackeray’s funeral made me take a long hard look at this section. What I discovered has appalled me. Not only is it shoddily drafted but it’s clearly open to, if not deliberately designed for, misuse. Section 66A consists of three parts. They are joined together with the word ‘or’ so each effectively stands alone. Thus they constitute three separate offences and for each the punishment could be three years imprisonment and a fine.

Section 66A begins: “Any person who sends, by means of a computer resource or a communication device, any information that is grossly offensive or has menacing character...” Now what is “grossly offensive” or “menacing”? Who is to decide? And can an ordinary policeman make the decision?

Clearly the language is so vague and imprecise it can be readily misused to cover anything. In the case of the Mumbai girls it clearly was.

Now come to part (b) of Section 66A. This reads: “Any person who sends, by means of a computer resource or a communication device, any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device...” Is this part redeemed by the words “knows to be false” and the fact it has to be done “persistently?” Possibly but I doubt it.

It covers categories such as annoyance, inconvenience, obstruction and insult which, again, are imprecise and liable to be abused. Furthermore, I don’t believe emails or posts using false information to annoy or insult, even if persistently, need to be criminalised in this way.

Why? Because one can write a book or a newspaper article based on slanted or distorted facts, which annoys or inconveniences, but the law does not deem that a criminal offence. The recourse is defamation. Why then should emails that annoy or inconvenience on the basis of twisted or false facts be treated differently?

However, part (c) of Section 66A is truly horrific. It reads: “Any person who sends, by means of a computer resource or a communication device, any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages….” Now, intentionally or unwittingly, this clearly covers April Fool’s jokes, which are designed to mislead, or letters written in anger which are often intended to annoy. That’s simply bizarre.

No doubt we need some check on emails and SMSes that incite violence or create mass fear, as happened earlier this year when tens of thousands of people from the North-east fled cities like Bangalore, Hyderabad and Mumbai in panic. But the sections of the law intended for this purpose need to be thoughtfully and precisely worded.

Section 66A is a bludgeon. It offends against the concept of the beauty of the law. It’s crude. It degrades whoever drafted it.

On Monday, Kapil Sibal seemed reluctant to accept these points. Instead, he blamed the misuse of the law on policemen who need to be educated. While I accept we need better policemen, it’s undeniable we need better drafted laws as well.